Blog

Estate of Baraba Purdue v Commissioner, T.C. Memo. 2015-249: The State of FLP and IRS Challenges to their Formation

In the past year there have been few FLP opinion from the U.S. Tax Court. Not to worry! One of the more recent cases is from the west side of WA, this a term thet folks in Central and Eastern Washington Stte to refer to cities west of the Cascade mountain range and often to folks from the Seattle metro area.

This caught my eye too for other reasons, specificaly I focus on exit planning (in my role as an attorney), as a valuation advisor I provide valuatiohn advisory services where I emphaisze the importance of exit and succession planning, and because it involves the IRS challenging an FLP established by the Purdue family, which is closely connected with the law firm of Montgomery Purdue Blankinship & Austin, LLC (a large Seattle firm) and I was curious to know more about the advise they gave to the Purdue family.

Issues:

1. Whether the value assets transferred by Barabare M Purdue (decedent) to the Purdue Family LLC (PFLLC) is includible in the value of her gross estate under section 2036(a) and 2035(a)?

2. Whether decedent's gift of PFLLC interests from 2001 through 2007 to teh Purdue Family Trust (PFT) are present interests giftd which qualify for exclusion under section 2503(b)?

3. Whether the estate is entitled to deduct interest on loans from the eneficiaries of the estate used to pay the estate tax liabilities?

Facts:

Decedent resided in Washington Strate when she died on November 27, 2007 at age 95;

Four of the five Purdue children acted as personal representatives of the estate;

Decedent was married to Mr. Purdue(Mr. Purdue), a founding member of the Montgomery Purdue Blankinship & Austin PLLC (MPBA);

Mr. Purdue invested in Tele-Vue Systems,described by the US Tax Counrt as a pioneeering cable company, when it was a start-up company in the 1960s for a nominal value.

Tele-Vue was aqwuired in 1969 by Columbia Broadcasting ystem in an income tax free exchange (probably a 368(a)(1)(A) exchange);

At the end of 1999 decedent and Mr. Purdue had a net worth of approximately $28 million consisting mostly of marketable securities worth approximately $24 million.

In 2000 the marketable securities were held in five different brokerage accounts at three management firms and these firms did not consult with one another or consider how the assets held by teh other firm were managed) (side note to readers: this is not surprising, the client needs to insist that these communicate and get them together, as for management, the FLP is one option, along with the CRT and perhaps a CLT, since selling the stocks would have triggered a gain; the FLP is designed to pass the gain at a discount to family members for a good business reason ... which requires a qualified valuation calling for a conclusion of value attached to the gift tax return!)

Decedent and Mr. Purdue also owned a 1/6 interest in a Honolulu, Hawaii commercial building valued at approximately $480,000 as of December 1999 and that as subject to a 55-year triple net lease through 2022 and had been managed by a real estate firm since 1982).

Strategy Used for Estate and Gift Tax Planning (remember the exemption then was far lower!! than now)

The children consulted Mr. Montgomery, who suggested that the family consier several strategies including: creating an irrevocable family gift trust; a qualified personal residence trust, and a member-managed WA family LLC;

The firm drafted the PFLLC operating agreement and this indicated that the purpose behind it included:

consolidate management and control to achieve efficiencies;

avoid fractionalization of ownership;

keep ownership within the extended family;

protect assets from unknown future creditors;

provide flexible management of assets not available through other business entities; and

promote education of, and communication among, members of the extended family with respect to financial matters.

In August 2000 (8 months after the draft operating agreement was sent to Mr. Purdue) formed the PFLLC and Purdue Family Residence Trusts (PFRTs).

Deedent retained the right to income and distributions from the property she transferred to teh PFLLC in proportion to ther PFLLC ownership percentage;

The Purdue children were advised of the above mattes and the memorandum sent to them described four non-tax business reasons.

On or about August 14, 2000, the parents transferred their respective 50% interests in the Purdue residence, then appraised at $2,80,000 to the PFRTs.

On November 24, 2000, the parents funded the PFLLC with the Hawaii real property interest and the marketable securities, and a $375,000 promissory note for a loan made on beach house in Delaware, as well as an $865,523 ertificate of deposit.

That same day the parents signed new wills incorporating a bypass trust, a qualified marital trust, and GSTT-exempt qualified trust;

In addition, the parents formed the Purdue Family Trust (PFT) that allowed PFT beneficiaries (descendants and spouses of their descendants) with Crummey withdrawal rights; these beneficiaries could annualy withdraw the lesser of the annual gift exclusion amount of each person making a transfer to teh PFT or a per capita share of the value of any assets transferred to teh PFT during the year).

Initially, the parents funded the PFT with cash (and distributed cash to teh Purdue children and other PFT beneficiaries).

From 2002 until 2007 decedent generally made an annual exclusion gift of PFLLC interests to the PFT effective on January 1 of each year in an amount based upon the current number of PFT beneficiaries and then made an additional annual exclusion gift effective on December 31 of thaty year if the number of PFT beneficiries increased increased during the year or the value of teh PFLLC fell during the year.

The values of the PFLLC gift interests were based upon valuation summaries.

Mr. Purdue died in 2001 and in connection with the above the children were advised of estate tax liabilities (to pay the liabilities one proposal floated was for the PFLLC to loan the estate $6,254,744 or agree that PFLLC would pay a $8,863,571 divided (higher than the tax because the dividedn is taxable and the net amount would be used to pay the estate liability).

Deadlock ensued and the children loaned the estate money (they also loaned to the QTIP).

When decedent died the PFLLC was owned as follows: 24.9247% by decedent outright; 42.1608% by the QTIP Trust; 20.7615% by the PFT; 7.2969% by the Ourdue children; and 4.8561% by the Bypass trust;

Decedent's estate had liabilities.

The IRS issued the estate tax notice of deficiency on February 21, 2012 and the gift tax notice of deficiency for the taable years 2001, 2002, and 2004 through 207 on September 12, 2012.

The Commisioner's Position/IRS Position

Section 2036(a). The Service contends that decedent's inter vivos gift was not a bona fide sale for adequate and full consideration and because deedent retained an interest or right enumerated in 2036(a)(1) or (2) or (b) in the transferred property which was not relinquished before death.

More speciically, the Service contends the bona fide sale for adequate and full consieration was not met (no legitimate business reason and argues that the motivation in forming the PFLLC is tax avoidance).

the Service also argues that made for the years in qustion were not giftd of present interests.

The Estae argues:

There was a bona fide sale and non-tax reasons for creating the FLP

That transferors received a partnership interest proportional to teh value of the property transferred

Court Holding

Whether a transfer is abona fide sale is a question of motive and the court's role is to separate nontax reasons for the PFLLC's formation from those that merely clothe the transfer tax savings motives;

The court gave weight to the memorandum from the law firm and the PFLLC operating agreement to establish a legitimate motive;

Despite Mr. Purdue standing "onboth sides of the transaction" and case law --Estate of Liljestrand v. Commissioner, TC Memo 2011-259, Estate of Strangi v Commissioner, TC Memo 2003-145, aff'd 417 F.3d 468 (5th Cir. 2005), standing for the proposition that "we have concluded that there is no arms'-length bargaining and thus the bona fide transfer excpetion does not apply"--"we have also stated that an arm's length transaction occurs when mutual legitimate and significant nontax reasons exist for the transaction and the transaction is carried out in a way in which unrelated parties to a business transaction would deal with each other." Estate of Bongard v. Commissioner, 124 TC 95. 123 (2005);

Hence, the court found the existence of a legitimate nontax motive for the transaction between decedent and teh PFLLC. (i.e., the bona fide sale issue was setteld in the estate's favor)

As for the gift tax challenge, the court found that "decedent's transfer to the PFLLC was a bona fide transefer an that deedent received full and adequate consideration from the PFLC as a result of the transfer ... section 2036(a) is inapplicable to the transfer and does not operate to include the value of property in the value of decedent's gross estate. 'If section 2036(a) does not apply to decedent's transfer, section 2035(a) annot apply to the gifts *** the PFLLC made' either."

As for whether or not the gifts made were a presenet interst gift, the Court noted that "a gift must confer on the donee a substantial present economic benefit by reason of use, possession, or enjoyment (1) of property or (2) of income from the property". The property in this case is an ownership interest in limited liability company interests. It viewed its duty here as one where it muneeded to inquire "whether donees in fact received rights differing in any meaningful way from those that would have flowed from a traditional trust arrangement." here, the PFLLC operating agreement was the source of donee's' rights and trestrictions to the use, possession, or enjoyment of the property. The rights were found to be limited; members of the PFLLC could not transfer their interests without unanimous consent by the other members. This was problemaic and the Court added that "we will consier whether the donees received such rights in the income." "To ascertain whether rights toincome satisfy the criteria for apresent interest under 2503(b), the estate must prove, on the basis of surrounding circumstances, that: (1) the PFLLC would generate income, (2) some portion of that income would flow stedily to the donees, and (3) that the portion of income could readily be ascertained."

The court found that the Hawaii commercial property was expected to generate rent income and that the marketable securities paid a a dividend.

Taxpayer Victory

Taxpayer won here, but it was close. The ase provides more insight reagrding what is a bona fide sale and provides us guidance regarding when a security is considered a present interest gift. One immediate take away here is that funding a FLP with closely held shares of an entity that does not regularly pay dividends or generate rental income is risky!

On June 24, 2015, The National Association of Valuators and Analysts (NACVA) announced revised professional standards at its Annual Conference in New Orleans. This is an important revision since the standards govern what must be considered and included in business valuation reports and expert reports. A copy of the new standards is available at this link, otherwise, please feel free to contact me at [email protected].

The NACVA Conference began Monday, 6/22 and runs through 6/26. I will be attending the following sessions:

Valuation of Businesses, Securities, and Intangible Assets for Bankruptcy Purposes

I am back in WA on Saturday!

If readers have questions on any of the above topics let me know. Also, as President of the WA State NACVA Chapter, we will have four events this year; two of them in connection with Pacific Lutheran University in Tacoma that will bring together colleagues working with the IRS (watch those tax estate and gift tax returns!!), one in Lake Chelan, and another either in Belllevue or Spokane.

Was this expert incompetent? Connected? Where the attorneys that retained him at fault? Was the client well-served by this "expert"? Was the Bankruptcy Court unfair to the "expert"? Did this "expert" underestimate the scrutiny the court would apply reviewing the report submitted? Understand that a Daubert challenge was coming? Understandhe and his firm would be under scrutiny especially if the court issued (a stinging report)? Read the case and decide.

The following is a summary (this is an abridged version):

The company/dip submitted a third plan for confirmation. The company provides wholesale mobile satellite communications and broadband services throughout North America. So, this company owns several satellites and licenses to use the satellite service spectrum issued through the FCC. The military and first responders are clients of this debtor. There was a fair amount of anatgonism and 16 classes where eventually created. A special purpose entity --owned by DISH's Chairman--opposed the plan and treatment accorded under the plan.

This SPSO offered a NY-based investment banker that amanged GLC as the valuation expert. In connection with the case there was a question of whether a 10Mhz spectrum would be auctioned off or assigned to Lightsuared. Lighsuared argued that despite that question, the plan of reorganization was feasible.

Moelis was the expert for the debtor. The Moelis expert testified that they had done spectrum valuations in the past and work related to telecoms. This expert had worked on the case for 2 years and also with a "jr analyst" (my words). The SPSO offered GLC as the valuation expert. This expert relied on the Moelis' expert's report and made certain modifications (amterial ones).

Here is what the court had to say about the $1.5M expert's report:

Many aspects of Mr. Reynertson’s testimony are noteworthy: (i) he had never previously valued satellites or spectrum (see Conf. Hr’g Tr. Mar. 27, 2014 (Reynertson) at 126:14-23); (ii) he applied certain faulty and arbitrary assumptions in his valuation methodology (see fn 41, supra); and (iii) he was not provided with the valuation analyses that had been prepared by Mr. Ergen and by PWP during the summer of 2013, and, when presented with such analyses at the Confirmation Hearing, he admitted that seeing these would have helped him and may have changed what he did in connection with forming his opinions.42 The GLC Valuation Report was rife with inconsistencies and flaws; it was on the whole an unimpressive piece of work and will not be afforded significant weight. In addition, a portion of Mr. Reynertson’s testimony relied on the expert opinion of Mr. Hyslop. As the Court finds that portions of Mr. Hyslop’s expert opinion shall be stricken from the record, as discussed infra, the portion of the GLC Valuation Report that relies on the stricken Hyslop testimony shall be afforded little weight."

The court added:

"The GLC Valuation Report offered by SPSO suffered from many infirmities and inconsistencies. On the one hand, Mr. Reynertson purported to have relied on the opinions of Mr. Hyslop for his determination of how much of LightSquared’s spectrum should be included in his valuation analysis and how much might be sidelined due to the “technical issue.” He appears to have relied in part on a Hyslop opinion that was first revealed at the Confirmation Hearing; this undermines the integrity of Mr. Reynertson’s opinion and, more generally, raises questions about his credibility. Moreover, notwithstanding his reliance on others for regulatory and technical assumptions, he appears to have used his own judgment to risk-adjust his valuation analysis. Simply put, his methodology is all over the place. Paid $1.25 million dollars for his work, Mr. Reynertson delivered a superficial analysis that was not even informed by a review of the valuations prepared by Mr. Ergen and PWP. The Court affords it little weight."

The case goes into depth regarding when a cramdown is allowed or disallowed. It is a good read on that level. It is also a reminder to counsel and parties in a Chapter 11 to retain the expert(s) early in the engagement. GLC should have passed on this opportunity; three weeks to get up to speed on this and generate an expert report with no other expert being retained to provide guidance (an expert can rely on another expert when generating an opinion!) is a tall task. This case is reminiscent of the Kodak case. In my opinion, GLC should have passed on this engagement, given the time frame ... but turning down $1.5M for a three week engagement is hard even given the above.

A professional can get up to speed and take on new matters, but must have the time and resources to develop the expertise. A superficial report is not the intended end result, but that is what the court said GLC delivered.

As for the questions asked at the beginning, those are ones for the reader to think about!

Very few Mary Kay representatives are able to make a living just selling the products. This Tax Court case involves one representative that did manage to do well, but who ran into some issues attempting to convert wages into retirement distributions, not subject to self-employment tax. So, why talk about this in a valuation blog? Because normalization of compensation is part of the valuation analysts job and this case underscores the some of the difficult issues that arise. See https://www.ustaxcourt.gov/InOpHistoric/Peterson_Foley.TCM.WPD.pdf.

I can imagine having some interesting discussions with counsel regardingcompensation if I were valuing a Mary Kay business interest. As for the arguments presented, well, if I were acting as an advocate--the attorney role--the arguments made are the ones I would have also made to the US Tax Court.

I recommend reading this 2013 case and waiting a few more weeks until the US Tax Court judges are back from their summer vacation.

The Whitehouse case is a case that has been in the news for years and one where the AVW 90 team has discussed in webinars over the past few years. By way of background, the taxpayer sought a deduction for a conservation easement an the U.S. Tax Court severely criticized the underlying work and assessed the 40% overstatement penalty. The taxpayer had two experts in the case --one that came up with the value of the easement, and a subsequent expert that coincidentally (?) arrived at a value close to the initial expert. They appealed to the 5th Circuit since the penalty was high and the U.S. Tax Court essentially said that their opinion was not changed. In other words, pay the penalty, since there were grounds to impose the same. The case went back to the 5th Circuit and the court concluded that the 40 penalty did no apply.

So, the taxpayer, in my opinion, got a break. Is the lesson here effectively that notwithstanding that an aggressive position is taken and you have two or more expert almost concur, that the 40 percent penalty will not apply? The cost is to hire an "unbiased" expert as part to the cost of doing business? I do not know. The U.S. Tax Court and other courts are concenred with the lack of impartiality on the expert's part and have started to recommend "hot tubbing" them, are these judges being unfair to parties exercisihg their rights? As an aside, how likely is an expert that comes up with a way lower value than that of the initial expert going to be hired by the law firm or client the next time there is adispute? Call me cycnical, but I doubt that expert will be called or foremost in the mind of the client the next time around.

The link above is to the case, I will talk about this when I do the NACVA Federal and State Case Law Update later this year. Your thought on the case are welcome and with regard to the questions asked, I am just stirring up the pot stirred by the U.S. Tax Court judges.

I am looking forward to the NACVA and Consultants Training Institute (CTI) Conference in Las Vegas this coming week. It is being held at the Wynne Resort. I am looking forward to it since I will be teaming up with some great professionals to discuss law firm valuations and issues with restaurant valuations. I am also looking forward to reconnecting with the valuation and litigation suppport network and seeing if any local competition (friendly) will be attending the Conference.

The Conference will include Shannon Pratt (I was co-editor of the ABA Bus Val book for attorneys, sponsored by the Family Law Section, ... which did not sell), Michael Pakter (a friend and leading bankruptcy and Ch 11 practitioner), Michael Kaplan (a suberb lit consultant and mentor), Rger Grabowski of D & P discussing new cost of capital models, Rod Burkett from Philadelphia (superb BV and lit support practitioner that contributes and mentors!), Mel Abraham, Peter Agrapides with whom I did work in SLC before returing to WA State), Carl Sheeler of San Diego (sharp and insightful practitioner that comes well-prepared) .... many more can be added to this list and deserve to be mentioned.

If you want to see what nerds like me do in a business valuation, lit support, and forensics conference click here and see!

On a side note, I am leading the WA NACVA Chapter this year and am planning on 2 events; one in Chelan during the grape harvest and another in Seattle, WA. Any help you can provide me with set-up, speakers and logistics in the ext few weeks are appreciated. Really! On a side note, I hav reached out to the WSBA and certain sections and heard "crickets", seriously ... it is a great networking opportunity and as an attorney I would have loved an opportunity like the one being presented.

If you wear a heart monitor when exercising, here is a case for you! You can think of it as you run or bike on the trail sweeting bullets and running away from the mosquitos.

All kidding aside, Nautilus v Biosig​ was a case that practitioners--mainly patent counsel--and their invetors eagerly anticipated and ... they will be very disappointed with the end result. The question before the Court was essentially how clear must patent claims be?

Now, I am not a patent attorney, I am an attorney, business broker and valuation/appraisal geek so this is a good case to think about as I consider the value (if any) of a patent, value of the company (if any), and saleability of a business owning IP. That said, patent prosecutors earn their "bread and butter" writing the claims to uphold the application (yes, they do more than that ... but writing claims is a substantial part of the business and not doing it properly can be a problem, a big problem). The Patent Act requires that a patent specification "conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as [the] invention." 35 U.S.C. sec. 112.

The Federal Circuit (which hears patent cases) has recognized patents --that is the patent threshhold is meet--so long as the claim, as construed, is "amenable to construction," and the claim, as construed, is not "insolubly ambiguous." Merriam-Webster defines "insoluble" as "cannot be dissolved in a liquid" and "not able to be solved or explained". What is "insolubly ambiguous" is a mystery to me and a huge pay-day for patent attorneys and their law firms. So, what did the U.S. Supreme Court have to say about this standard? Here are the bullets:

The Federal Circuit's "formulation, which tolerates some ambiguous claims but not others, does not satisfy the statute's definiteness requirement."

They proposed a new standard, which goes like this:

"[W]e hold that a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention."

It appears that the initial inquiry for definiteness involves evaluating the claim(s) "from the perspective of someone skilled in the relevant art.

Second, "in assessing definiteness, claims are to be read in light of the patent's specification and prosecution history".

​Third, "definitiness is measured from the viewpoint of a person skilled in the art at the time the patent was filed.

Here, Nautils argued that the patent --of the opposing party--was invalid and that "definteness" fails when a claim is "ambiguous, such that readers could reasonably interpret the claim's scope differently." Biosig and the Solicitor General would require only "that the patent provide reasonable notice of the scope of the claimed invention."

Nautilus' counsel was asked whether the challenged claims where "amenable to construction" or "insolubly ambiguous"; the answer was, of course, favorable to their client and position.

The Court therefore created this new four-prong standard and observed that it agreed with Nautilus and its amici "that such terminology can leave courts and the patent bar at sea without a reliable compass." More on point, the Court observed that "Nautilus maintains that the claim term "spaced relationship" is open to multiple interpretations reflecting markedly different understandings of the patent's scope, as exemplified by the disagreement among members of the Federal Circuit panel. Biosig responds that 'space relationship,' read in light of the specification and as illustrated in the accompanying drawings, delineates the permissible spacing with sufficient precision."

This case has been remanded so that the Court of Appeals "can reconsider, under the proper standard, whether the relevant claims in '753 patent are sufficiently definite."

As some lawyers (and some others may say), "the Court punted". The compass they provided is not--in my opinion--any better than the "insoluble ambiguity". Furthermore, the case exemplifies the importance of drafting claims and the vague standards and problems that arise in these high dollar cases where the defendant raises the ambiguity argument to defeat the infringement and damages claims brought by a plaintiff.

Judge Laro is a pre-eminent US Tax Court judge that authored the Mandelbaum opinion. He has been active with the different business valuation and appraisal societies. He is back in the news. He has called for a new way of eliciting the testimony of experts, this proposed method is referred to as "expert hot tubbing".

This is an approach that would work well in other venues. One other option not used frequently enough is for the court to retain its own expert. That possibility could reduce the intensity of litigation and impression that the expert's are really not impartial. Will experts temper their judgment if they know the court has its own expert and/or the court will "hot tub" the experts. Whether this is adopted in WA is an open question (in my opinion).

This topic is one that could be of interest to my fellow NACVA BV professionals and the Chelan-Douglas Cty Bar Association. I have reached out and let's see if they are active and if they are active, the level of interest in this and other topics. A roundtable discussion could work well--I think--if there is an interest.